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23 F.

3d 394

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished


opinions may be cited only in related cases.
Laura E. LOPEZ-MERRERO, Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
No. 93-2092

United States Court of Appeals,


First Circuit.
May 31, 1994

Appeal from the United States District Court for the District For Puerto
Rico [Hon. Carmen Consuelo Cerezo, U.S. District Judge ]
Raymond Rivera Esteves and Juan A. Hernandez Rivera on brief for
appellant.
Guillermo Gil, United States Attorney, Maria Hortensia Rios, Assistant
United States Attorney, and Paul Germanotta, Assistant Regional Counsel,
Department of Health and Human Services, on brief for appellee.
D. Puerto Rico
AFFIRMED
Before Selya, Cyr and Stahl, Circuit Judges.
Per Curiam.

Claimant Laura E. Lopez-Marrero appeals from the judgment of the district


court which affirmed the decision of the Secretary of Health and Human
Services that claimant was not entitled to Social Security disability benefits.

I. BACKGROUND

Claimant filed an application for Social Security disability benefits on June 6,


1989. She alleged an onset date of October 15, 1988. As disabilities she listed
her nerves and her back. She related her impairments to two falls at work. An
administrative law judge (ALJ) held a hearing. Claimant testified concerning
her most recent work. First, she worked in a pharmaceutical factory where she
manually checked and counted the gloves made there. She would alternate
between sitting and standing and only had to carry "little" things. Next, she was
employed as an office worker; she took notes and answered the phone.

Claimant stated that she lives with her husband. After the accidents, she
suffered pain in her left leg, left hip, left ankle and right hand. She uses a cane
because of the pain in her legs. She visits a doctor when in pain and takes
Motrin. She can sit and stand for twenty minutes at a time but has problems
walking. She can lift light objects. She would like to work but cannot because
of the problems she has with her memory due to her nerves and because of the
pain in her lower back, coccidial area and left hip. She described her pain as
strong although sometimes the medicine helps. As for her nerves, she feels
desperate and restless.

The ALJ first determined that claimant's impairments did not meet the listings.
Nonetheless, he found that there existed some limitations in her work-related
activities due to both her exertional and non-exertional conditions. As for
claimant's mental impairment, the ALJ concluded that claimant was only
precluded from performing complex tasks due to some deterioration in her
ability to sustain concentration. Nonetheless, she retained the capacity to
perform simple tasks that were routine and repetitive in nature. He rejected the
level of deterioration described by claimant, finding that, under Avery v.
Secretary of Health and Human Services, 797 F.2d 19 (1st Cir. 1986), she was
only somewhat limited in social functioning and daily activities.

In relation to her neurological condition, the ALJ found that she suffered from
lumbar strain and had a history of trauma to her left hip, left ankle and right
hand. Under Avery, the ALJ credited claimant's complaints of pain only to the
extent that she was precluded from doing heavy lifting and carrying and from
standing or walking for prolonged periods of time. Thus, he concluded, she
could perform her past work.

On appeal, claimant argues that the ALJ's determinations regarding her pain
were not substantially supported by the record. Further, claimant asserts, the
ALJ erred by translating, without the aid of a vocational expert, the medical
evidence of claimant's physical impairments into functional limitations on her

ability to perform her past work. As for her mental condition, claimant asserts
that the ALJ's decision was not supported by substantial evidence when viewed
in the context of the record as a whole. Specifically, claimant points to the
findings concerning restrictions in her ability to cope with the stresses of work
in general.
A. Physical Impairment
7

The x-ray reports, which found partial sacralization of the L-5 disc and
narrowing of the L-5-S-1 disc space, do provide evidence of "a clinically
determinable medical impairment that can reasonably be expected to produce
the pain alleged." See Avery, 797 F.2d at 21. However, there also was evidence
to support the ALJ's decision not to credit claimant's claims of totally disabling
pain.

For example, in November 1989, claimant underwent a neurological


evaluation. See Exhibit 15. Although claimant's complaints included constant
pain, she had normal tone, no atrophy and a strength rating of 4 out of 5. There
was no muscle spasm and no deformity. The diagnosis was lumbar strain. At
another examination in October 1990, see Exhibit 22, claimant complained of
mild lower back pain which was alleviated with Motrin. Despite the presence of
some muscle spasm and a limited range of motion of the lumbar spine, there
was no muscle weakness or atrophy and no sensory deficit; claimant's gait was
normal. The diagnosis was a back condition by history, with no evidence of
radiculapathy.

Contrary to claimant's argument, the ALJ did not impermissibly translate


medical data into functional limitations. Rather, the record contained two
residual functional capacity (RFC) forms. In December 1989, a physician
opined that, based on the medical records, claimant had no exertional, postural
or other limitations. In a November 1990 RFC assessment, it was noted that
claimant could occasionally lift and carry up to 50 pounds and could frequently
lift and carry 25 pounds. She could stand, sit and walk for up to six hours each
per day.
B. Mental Condition

10

Claimant's mental impairment presents a more complicated picture but, again,


there is evidence to support the Secretary's position. A psychiatric examination
conducted in November 1989, see Exhibit 16, revealed that claimant was
logical, coherent, relevant and oriented. She did not present any perceptual

dysfunctions. Although she appeared anxious and depressed, her attention span
was conserved and her ability to concentrate was adequate. She was described
as capable of judging reality and the consequences of her acts.
11

In July 1990, claimant also was described as coherent, relevant, logical and
cooperative; there were no observable thought disorders. See Exhibit 18. Her
affect was appropriate and her mood normal. She reported delusions, but the
examiner described them as hysterical in nature. Her memory was conserved. In
addition, claimant took the MMPI. The examiner described the results as
"exaggerated." That is, claimant "reported symptoms of such severe disturbance
that her profile fell outside the maximum limits that the profile was designed to
measure." As a result, "[s]he would have been unlikely to be unable [sic] to
take the test properly if she were as severely disturbed as she was claiming, and
her behavior during the clinical part of the examination was in sharp contrast
with her claims of disturbance." The diagnoses were mild dysthymia and a
personality disorder with dependent and hysterical features.

12

Three non-examining doctors completed mental RFC assessments. In


December 1989, claimant was rated as not significantly limited in
understanding, remembering and carrying out short, simple instructions. Also
not significantly limited were her abilities to sustain an ordinary routine without
supervision, to make simple work-related decisions, to relate to co-workers, to
maintain socially appropriate behavior and to handle changes in the work
environment. As for maintaining concentration for extended periods of time,
performing within a regular schedule, and being able to complete a normal
work-week without interruptions from psychologically-based symptoms,
claimant was moderately limited. She was not "markedly limited" in any areas.
The conclusion was that claimant was capable of performing simple tasks on a
sustained basis.

13

The RFC assessment completed in August 1990 essentially reached the same
results. Even with moderate limits on her abilities to complete a normal workweek, to respond appropriately to changes in the work setting, and to accept
supervision, claimant retained the abilities to cope with simple instructions, to
perform within a schedule, to make simple work-related decisions, to work in
proximity to others, to sustain an ordinary work routine, to maintain regular
attendance and to be punctual. The third physician, in November 1990, echoed
the findings concerning claimant's capacity to deal with simple instructions, to
work with others, to make simple, work-related decisions and to respond
appropriately to criticism. She was moderately limited in dealing with the
stresses of work in general-being able to concentrate, maintaining a routine
without supervision, completing a normal work-week and keeping up regular

attendance.
14

In Social Security Ruling (SSR) 85-15, the Secretary set out the framework for
addressing mental impairments in the context of unskilled work. See Ortiz v.
Secretary of Health and Human Services, 890 F.2d 520, 526-27 (1st Cir. 1989)
(per curiam) (discussing SSR 85-15). Two sets of capabilities are necessary for
this kind of work. First, claimant must be able to understand, remember and
carry out simple instructions, to respond appropriately to co-workers,
supervision and normal work situations, and to cope with routine changes in the
work situation. There is substantial evidence, based on the above reports, that
claimant meets these requirements.

15

The second set of capabilities concerns the demands of any work environment,
regardless of the skill level involved. To be able to accommodate a work
setting per se, according to SSR 85-15, an individual must be capable of being
punctual, attending work on a consistent basis and staying at work for the entire
day. The RFC assessments uniformly rated claimant as "moderately limited" in
these spheres of functioning. We have acknowledged that such limitations may
erode the occupational base "at least marginally, and possibly more so." See
Ortiz, 890 F.2d at 527; see also Irlanda Ortiz v. Secretary of Health and Human
Services, 955 F.2d 765, 770 (1st Cir. 1991) (per curiam).

16

In this case, we believe that there is substantial record evidence to support the
Secretary's decision that claimant's dysthymia did not significantly affect her
ability to successfully negotiate the work setting. In this regard, we note that
objective medical evidence-the MMPI-indicates that claimant may be
exaggerating her symptomology.

III. CONCLUSION
17

We conclude that claimant has not met her burden of establishing that her
impairments precluded her from performing her past work. See Gray v.
Heckler, 760 F.2d 369, 371 (1st Cir. 1985) (per curiam). "We must uphold the
Secretary's findings ... if a reasonable mind, reviewing the evidence in the
record as a whole, could accept it as adequate to support [the Secretary's]
decision." Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218,
222 (1st Cir. 1981). Although the record contains conflicting evidence, the
resolution of these conflicts is for the Secretary, not the courts. See id. Given
the medical reports described above, there was substantial evidence in the
record as a whole to support the Secretary's conclusion.

18

The judgment of the district court is affirmed.

18

The judgment of the district court is affirmed.

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